Why 97% of Federal Drug Offenders Plead Guilty


A couple of years ago The New York Times noted that the percentage of criminal cases ending in plea bargains has increased during the last few decades as mandatory minimum sentencing laws have raised the potential penalty for going to trial. A new report from Human Rights Watch highlights the tremendous leverage that such laws give federal prosecutors in negotiating plea deals with drug offenders. Under Title 21, Section 841(b)(1), for example, prosecutors have complete discretion in deciding whether to mention prior felony convictions in connection with a drug offender's sentencing, which can have a jaw-dropping impact on the penalty he receives:

If a prosecutor decides to notify the court of one prior conviction, the defendant's sentence will be doubled. If the prosecutor decides to notify the court of two prior convictions for a defendant facing a 10-year mandatory minimum sentence on the current offense, the sentence increases to life.

That is what happened to Sandra Avery, who in 2005 was arrested for possessing 50 grams of crack cocaine—less than two ounces—with intent to deliver. That amount alone triggered a 10-year mandatory minimum sentence, and that is the penalty she would have received if she had pleaded guilty. Instead she went to trial, was convicted (as are 90 percent of federal drug offenders who insist on their right to trial), and received a life sentence after the prosecution called the court's attention to Avery's three prior convictions in Florida for possessing small amounts of crack. The crack involved in those earlier offenses was for personal use, and it was worth less than $100 all together. "Among defendants who were eligible for a sentencing enhancement because of prior convictions" in 2012, Human Rights Watch found, "those who went to trial were 8.4 times more likely to have the enhancement applied than those who pled guilty."

Another powerful source of prosecutorial leverage is Title 18, Section 924(c), which prescribes mandatory minimums for possessing a gun in connection with a drug offense. The first such offense triggers a five-year sentence, each additional instance triggers a 25-year sentence, and the sentences must be served consecutively. That is how Weldon Angelos ended up with a 55-year mandatory minimum sentence for three small-time marijuana sales during which he possessed a gun, even though he never threatened or hurt anyone. Before Angelos was convicted and received what may well amount to a life sentence, prosecutors offered him a plea deal that would have resulted in 40 fewer years behind bars. "Among drug defendants with a weapon involved in their offense," Human Rights Watch reports, "those who went to trial were 2.5 times more likely to receive consecutive sentences for §924(c) charges than those who pled guilty."

The impact of such disparate treatment is dramatic:

In 2012 the average sentence of federal drug offenders convicted after trial was three times higher (16 years) than that received after a guilty plea (5 years and 4 months)….Among first-time drug defendants facing mandatory minimum sentences who had the same offense level and no weapon involved in their offense, those who went to trial had almost twice the sentence length of those who pled guilty (117.6 months versus 59.5 months).

Prosecutors have always offered lenience in exchange for guilty pleas; that is what makes such arrangements possible. But the huge differences in punishment documented by Human Rights Watch make demanding a trial so risky that almost no one chooses that option. "Only three percent of federal drug defendants go to trial," the report notes. "Plea agreements, once a choice to consider, have for all intents and purposes become an offer drug defendants cannot afford to refuse."

In the July 2011 issue of Reason, Timothy Lynch explained the pernicious impact of plea bargaining, noting that the popular understanding of American justice "is wildly off the mark" because only a small percentage of cases actually go to trial.

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  1. Instead she went to trial, was convicted (as are 90 percent of federal drug offenders who insist on their right to trial), and received a life sentence…

    It would be so sweet if they all somehow got it in their minds not to bargain and instist on trials and bring the courts to their knees, but the above lesson makes certain that won’t happen.

    1. A real-world, literal demonstration of the prisoners dilemma.

      1. All in the name of justice, though.

    2. One of the reasons they slap the extra time on is to deter others from not pleading guilty.

  2. Mandela fans should take a good long look at Sandra and Weldon. They are what political prisoners look like.

  3. So the only people who can afford to go to trial are those who have nothing in their record or the prosecutor can’t multiply the offense with various additional charges such as possessing a weapon while having drugs.

    So I am not allowed to lie to a police officer but an officer can lie to me, and I can’t coerce a prosecutor but a prosecutor can coerce me. Great legal system we have

    1. So the only people who can afford to go to trial are those who have nothing in their record or the prosecutor

      It is rarely prudent for them to go to trial. The prosecutor can always find additional charges to coerce a first-time offender to plea.

      But mandatory minimums are indeed the worst in the miscarriage of justice.

  4. Stories like this should eliminate the notion that we need government to provide a justice system. Government only pretends to provide a justice system. The US “justice system” is responsible for at least as much gross injustice as justice. At best, it is a very expensive system with dubious net benefit.

    What lands a guy in prison? #1 drug offenses, 50%. #2 weapons and explosives charges related possession, distribution, etc. (not use), 15%. #3 immigration, 11%. Only 24% of federal inmates were convicted of a real crime where a real victim complained.

    1. There IS no “justice”!

      There’s…just US.

      //70’s Blaxploitation Film Dialogue

    2. The justice system would be fine if it could be limited to “mala in se” laws instead of “mala se prohibita”.

  5. Plea bargaining should be abandoned along with charging someone with multiple levels of the same crime, which is nothing but a mechanism to get a conviction when the state fails to prove the higher level charge they really want.

  6. The natural state of empathy that motivates the actions of intelligent men and women is negated through the codification of law and order. In the same sense that law and order present social structure it also creates legal justification for dehumanization. To argue that the modern state represents civilized excellence is to be ignorant of the fact that the genteel have merely polished and fortified their contemptible vacuum of mercy behind the flowery and haughty walls of ‘Social Justice’ and ‘Tough on Crime’.

  7. Another issue not taken into consideration here is that because of “guilty until proven innocent” asset seizures, defendants cannot afford to hire legal council. Having all their money and assets seized by a greedy law enforcement community with huge monetary incentives to find guilt and not justice gets that conviction rate all prosecutors dream of and we should all fear.

  8. They don’t give a damn about justice, as long as they’re filling those prisons, these idiots think they’re doing the “right” thing. A judge is ‘never’ wrong!

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